Incline beach access: District court judge hands down ruling in favor of IVGID

<b>File photo</b>A look at one of the Incline beach kiosks, which at one point were labeled with signs reading and#8220;private beachand#8221; prior to Steven Kroll's lawsuit being filed. The beaches since been labeled "public with restrictions."

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INCLINE VILLAGE, Nev. — Steven Kroll will appeal a recent ruling by a district court judge in favor of the Incline Village General Improvement District regarding who can access the community's deed-restricted beaches.

Kroll, a Crystal Bay resident, confirmed in an email this week his plans to appeal Washoe County District Court Judge Steven Kosach's Sept. 6 order to the Nevada Supreme Court.

In a prepared statement, Kroll said he was “disappointed” with Kosach's ruling, calling it “confounding” and adding that the high court will now have to decide whether a “private beach can be a public beach at the same time,” and answer the question of “how IVGID taxpayers who are excluded from the beaches can nevertheless be forced to pay the ... yearly fee for the other recreation venues.”

“Those questions will be resolved for all the people of Nevada, not just IVGID and me, in the fullness of time,” Kroll wrote.

He continued: “(Kosach) did not disagree that IVGID was limited by Nevada law to providing only ‘facilities for public recreation' as I had argued. He simply found that the beach properties are public recreation — a determination that should be as confounding to those who have always considered and treated the beaches as private as it is to me.”

By law, Kroll has 30 days from the 6th to file an appeal.

Kroll originally filed a complaint against IVGID and current trustees Bea Epstein and Chuck Weinberger and then-trustees Robert Wolf, John Bohn and Gene Brockman in the First Judicial District Court of Nevada, and it later moved to the U.S. District Court in April 2008.

His complaint alleged both federal and state violations, arguing the district's recreation policies as outlined in Ordinance No. 7 are illegal, and it further alleged the 1968 deed restriction included in IVGID's purchase of four beachfront properties — Incline, Ski, Burnt Cedar and Hermit beaches — violated his constitutional rights.

The complaint stated Ordinance No. 7 violated Kroll's right to peaceful assembly as granted by the First Amendment. The suit further claimed the ordinance was a violation of the 14th Amendment, which guarantees all U.S. equal protection under the law.

Kroll also filed a separate motion challenging IVGID's First Amendment policy — Policy and Procedure 136 — which allows anybody to access certain public forum areas at all IVGID venues, including the parking lots and sidewalks at the beaches, as unconstitutional.

On Feb. 10, 2010, U.S District Court Judge Edward C. Reed ruled in favor of IVGID regarding the federal claims while remanding the state issues back to district court — leading to Kosach's order this month on the latter.

While it was previously reported in 2010 Kroll planned to appeal Reed's ruling, he never did.

Throughout much of his 13-page order, Kosach referred to Reed's ruling — as well the December 2011 ruling from the 9th U.S. Circuit Court of Appeals that struck down a similar lawsuit from Crystal Bay resident Frank Wright — to build his opinion.

“The ... beach properties were acquired in 1968 for the purpose of providing beach recreation facilities for use by the 1968 IVGID property owners,” Kosach wrote. “This necessarily meant all of the IVGID property owners at the time and the beach properties were open to all members of IVGID who owned property within the 1968 properties. Therefore, this Court finds that the properties were acquired for a public use.”

Further, Kosach found that, “this Court concludes that the continued exclusion of (Kroll) and other IVGID property owners who did not own property within IVGID as it existed in 1968 is a valid restriction pursuant to the deed transferring the subject beach properties.”

Kosach also disagreed with Kroll's argument that since he is an IVGID resident (by way of the 1995 merger of the Crystal Bay General Improvement District with IVGID) he should not be excluded from the beaches.

Based on Nevada law and previous court rulings, “it is clear to this Court that the restrictive covenant sought to exclude any property owner who was not a member of IVGID as of June 4, 1968. The restrictive covenant makes no distinction between property annexed or merged with IVGID in the future,” Kosach wrote.